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Sprigman, Christopher Jon --- "The Intersection of Patent and Antitrust Law" [2012] ELECD 226; in Elhauge, R. Einer (ed), "Research Handbook on the Economics of Antitrust Law" (Edward Elgar Publishing, 2012)

Book Title: Research Handbook on the Economics of Antitrust Law

Editor(s): Elhauge, R. Einer

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848440807

Section: Chapter 13

Section Title: The Intersection of Patent and Antitrust Law

Author(s): Sprigman, Christopher Jon

Number of pages: 27

Extract:

13 The intersection of patent and antitrust law
Christopher Jon Sprigman*


INTRODUCTION

Antitrust law's treatment of potentially anticompetitive business conduct involving
patents has oscillated between aggressive intervention and acceptance bordering on com-
placency. Pre-Chicago antitrust viewed patents as monopolies, and the exercise of patent
rights as likely to raise antitrust concerns. This view led antitrust courts to construe the
scope of patents narrowly, and to intervene to police licensing terms, price restraints, and
other business conduct of patentees that might harm competition.1 It also led the federal
antitrust agencies toward close policing of patent licenses.2
Following its Chicago reformulation, antitrust has slowly moved away from its former
hostility. Some of this movement reflects a reappraisal of the respective roles that anti-
trust and intellectual property (IP) play in consumer and social welfare. By the advent
of the agencies' 1995 Antitrust Guidelines for the Licensing of Intellectual Property,3 the
prevailing view had shifted markedly away from the presumed antagonism that char-
acterized the patent­antitrust interface pre-Chicago. The IP Guidelines denied, at least
implicitly, any foundational incompatibility, stating instead that `[t]he intellectual prop-
erty laws and the antitrust laws share the common purpose of promoting innovation and
enhancing consumer welfare'.4 Based in part on this shift in background presumptions,
the IP Guidelines asserted that IP licensing was broadly procompetitive, and that the rule
of reason would be applied in the antitrust analysis of licensing restraints.


* The author wishes to thank Einer Elhauge for ...